In Quebec on October 9, royal assent was given to Bill 68, An Act mainly to reduce the administrative burden of physicians (Bill 68), [1] which, in particular, amends the Act respecting labour standards (“ALS”). [2]
This Bill, which aims to ease the administrative burden faced by doctors and improve the timeliness of health care services, represents a major change in the way employers exercise their right to manage employee absences. When the Bill comes into force on January 1, 2025, employers will be restricted from requesting supporting documents like a doctor’s note to justify certain absences.
This legislative initiative appears to follow the lead of the Ontario legislature, which in May 2024 introduced a bill prohibiting employers from requesting a medical note from a health professional for employees who take up to three (3) days off per year due to personal illness, injury or medical emergency. This bill received Royal Assent and the relevant provisions came into force on October 28th, 2024.
Sick Leave
Bill 68 now provides that for the first three periods of absence of three (3) consecutive days or less, due to illness, an organ or tissue donation, an accident, domestic violence, sexual violence or a criminal offence, [3] the employer may not request a document attesting to the reasons for the absence. [4]
The current version of the ALS [5] allows the employer to request a supporting document for any absence where “it is warranted by the duration of the absence or its repetitive nature.”
However, under Bill 68, the employer can no longer make such a request for the first three periods of absence of three (3) days or less. It should also be noted that the prohibition applies to any document attesting to the reasons for the absence, not just a medical note.
However, the Bill provides an exception to the prohibition preventing the employer from requesting a document to justify an absence due to illness: an employer may require such a document after an employee has been absent three (3) different times or after an absence of more than three (3) days [6] .
Family-Related Leave
For an absence to fulfill family obligations related to the care, health or education of the employee’s child or their spouse’s child, or due to the state of health of a family member or a person for whom the employee acts as a caregiver, [7] Bill 68 now prohibits employers from requiring employees to provide a medical certificate attesting to the reasons for the absence. [8] Employers will still be able to request documents justifying the absence, but not medical certificates.
It should be noted that for these types of absences, the Bill does not specify if and when any medical certificate could be requested. This prohibition will therefore apply to all days of leave permitted by law for such absences, namely for a total of ten (10) days per year.
Exempted Absences
It should also be noted that the above restrictions on being able to request a medical certificate or supporting document do not apply to other absences provided for in the ALS, [9] in particular, any absence due to:
- the employee being required to stay with a family member or relative affected by a serious illness or accident (s. 79.8 ALS);
- the disappearance of the employee’s minor child (s. 79.10 ALS);
- the death of the employee’s minor child (s. 79.10.1 ALS);
- certain family members of the employee having committed suicide (s. 79.11 ALS);
- the death of their spouse or a child of full age occurring during or as a result of a criminal offence (s. 79.12 ALS);
- the death or funeral of certain family members (ss. 80 and 80.1 ALS).
In other words, an employer can still require supporting documentation, including a medical note, to justify these absences.
Practical Implications
The amendments come into force on January 1, 2025. While their impact on an employer’s right to manage is obvious, it should be noted that the ALS does not currently allow employers to systematically require an employee to provide supporting evidence each time they are absent. However, once the new legislative provisions come into force, this prohibition will be expanded and more restrictive than it was before the Bill.
It would therefore be advisable for employers to begin revising their internal policies, guides, manuals and practices to comply with these new restrictions at the turn of 2025. Accordingly, although employers will be limited in the documentation they may require, a careful review of internal policies could help the employer mitigate the impacts of the bill, in particular by imposing clear obligations on employees who must be absent from work due to illness or another reason provided for in the ALS. For example, the policy could, immediately when the reason for the absence occurs, legally require disclosure that provides sufficient detail to allow the employer to confirm the validity and duration of the absence. In the event of a flagrant breach by an employee, whether regarding policy compliance or regarding whether the reason for the absence is true, employers will retain the right to take any disciplinary or administrative action.
Moreover, in unionized workplaces, a review of existing collective agreements will be essential, particularly with regard to clauses requiring employees to provide a medical note or supporting document for certain absences.
If you have any questions, please do not hesitate to contact your Fasken lawyer.
[1] An Act mainly to reduce the administrative burden of physicians, 1st Sess, 43rd Leg (QC).
[2] Act respecting labour standards, CQLR c N-1.1.
[3] ALS, s 79.1.
[4] Bill 68, s 8.
[5] ALS, s 79.2.
[6] Bill 68, s 8.
[7] Section 79.7 of the ALS allows for ten (10) days of absence per year for these reasons.
[8] Bill 68, s 9.
[9] Bill 68, s 10.
